Learning From Sophie Scholl

Why Austria’s anti-Nazi Legislation Ought to be Amended

Composed on June 16, 2014

In May 1945, a few days after World War Two had ended in Europe, the new government of Austria enacted an emergency decree designed to assist the transition to a free and democratic society. It banned and dissolved the Nazi Party, confiscated its property, and disempowered the Nazi leaders. Moreover, it made attempts to reestablish the Nazi Party or to found any other National Socialist organization illegal. To be on the safe side, the promotion of Nazi ideas as well as any activism in support of National Socialist aims were prohibited, too. The government enacted an absolute penalty for any such efforts: capital punishment.

About two years later, the government and the Allies had managed to restore basic order. The government — composed of Communists, Socialists, and the People’s Party (Christian-Democrats plus Conservatives) — had meanwhile been recognized by the Allies. Much of the country was still in ruins. People were traumatized by war, firebombing, atrocities, camp life. Things were still not good, but — very gradually — getting better.

It had long been decided that denazification is imperative. The effects of Nazi propaganda needed to be reversed. Neither the Western Allies nor Stalin’s Soviet Union considered pro-German nationalism beneficial to their interests or compatible with their values and ideas. Thus, it was easy to reach a compromise. The Allies had submitted a bulk of demands to the Austrian government. They included the prohibition of National Socialist activism, as well as regulations to register Nazis, to bar them from serving in the administration, to ban them from universities, to exclude them from higher professions, to deprive them of their right to vote (even for anti-Nazi politicians), to seize their property, and the like.

Naturally, there were no Nazi sympathizers in the Austrian government either. Many politicians had either returned from exile or had spent the war underground, in detention or in a concentration camp. Most had suffered from some form of persecution or discrimination. All of them knew a relative, a friend or an acquaintance that had. If he or she was still alive, that is.

Maybe that was the reason why they supported a softer approach. While all Austrian politicians agreed in principle with the noble aims of denazification and of creating a better world (some even insinuated that they themselves had invented the idea), all of them — Communists, Socialists, Christian-Democrats and Conservatives alike — had serious reservations as to the methods: Restrictions cannot be sweeping. The net must not be cast too far. Measures need to be proportional.

Concerns exceeded mere political pragmatism by far. These were people who had first-hand experience with totalitarian rule. Some were not keen on replacing Hitlerism with new forms of repression. A solid majority believed in freedom and justice for all. They believed in the power of the better argument, in education, and in inalienable rights. The moderates — the People’s Party and the Social-Democrats — actually despised the idea to punish people based on their former or even current convictions. Even to Communist intellectuals (who secretly loathed the Stalinist opportunists) the oppression of Nazis had no end in itself: it was considered a temporary educational mean to overcome a reactionary consciousness in order to pave the way to a world more just.

However, there were also bad news: Opportunism had opened the gates to questionable extremes of anti-Nazism. Negative emotions of vengeance, feelings of hatred, anger and desperation, irrational fears that Nazism could rise again had added their part. In general, this wasn’t the best time for an all-inclusive civil rights campaign: dozens of millions of people had died or been crippled in the war; millions more had been murdered, incarcerated; millions homeless; millions starving. „Uncle Joe” was breathing down at people’s necks. Even many integer politicians felt that any cheap shot at the Allies’ ideological enemies ought to be taken. Trust needed to be rebuilt. Silencing a bunch of extremists and revengists sounded like a small price to pay. It could only support the claim that Austrians had never desired Nazism. Maybe the Red Army would eventually leave.

In addition, there were practical difficulties: Austrian politicians were actually in no position to negotiate or alter the Allies’ propositions (which clearly bore Stalin’s mark).

So the emergency decree of May 1945 was amended. It included a better-elaborated version of penal articles. The law became known as Prohibition Act 1947 (Verbotsgesetz 1947).

Three generations later, the world has changed. Eastern Europeans have long rescinded the Soviet Union’s legal heritage, but in Austria — strangely enough — the Prohibition Act’s penal sections are still in force.

The legally most relevant norm is s. 3g. It defines a prison sentence „between one and ten years” for „whoever performs an activity inspired by the National Socialist ideology.” It provides a target penalty (in sentencing procedures) of „up to twenty years” if „the perpetrator or the activity should pose a particularly grave danger.” In 2014, Austria’s Supreme Court confirmed that running a website, hosted in the United States, containing expressions considered legally relevant can constitute such a „particularly grave danger.” (12 0s 82/13w-20).

Such thoughts are tempting but misleading. Senator Joe McCarthy very much argued the same. He could have imprisoned — as he called it — „half of Hollywood” had U.S. Congress ever permitted him to declare everyone „performing an activity inspired by the Communist ideology” a criminal.

Logicians call such and similar considerations „fallacious” (the conclusion contradicts the concept behind the premise), but let’s permit similar, better thoughts for a second: Shouldn’t we learn from history? Don’t we know to what Nazism will lead? Isn’t the womb out of which it crawled still going strong? These are good questions, asked by sincere anti-Fascists.

Anti-Fascists oppose National Socialism on material grounds: they disapprove of its premises, its ideas, and its vision to order a society.

My thesis is of an entirely different nature: I am arguing that the quality of the Prohibition Act could be significantly improved if parliament were to (re-)consider some principles important to a free and democratic society. I am neither analyzing nor challenging the validity of anti-Fascist perspectives.

If one consults experts on Austrian penal law and naively asks what’s the problem with s. 3g, the (often so dry) law school professors find words remarkably strong and picturesque: it would be a penal law of „great vagueness” and „boundless expanse.” (Bertel) Being „without description of the (criminal) act,” s. 3g would lack „all guarantees provided by a state under the rule of law.” (Rittler) The „Draconian severity” (Rittler) of the penalty would be reminiscent of „Nazi methods.” (Platzgummer)It would be a „legislation targeting convictions” which can be abused to prosecute „possibly any facts.”(Klecatsky)

Let’s briefly talk about „Nazi methods” and „legislation targeting convictions.” This still seems to be important. If we take this to our hearts and minds, Sophie might not have given her life in vain.

Sophie Scholl was a young German student. She was a pretty girl who loved to ponder. During the course of World War Two, Sophie and her brother Hans decided to distribute a few self-designed pamphlets in a small number of copies. Being a Christian idealist, Sophie held humanist and pacifist beliefs. She argued that the war was already lost, so people could as well stop killing each other. She called for sabotage and passive resistance. And she suggested that Germany would currently be run by undermen.

The German government — surprise! — begged to differ. Actually, it became enraged:

Who was this „spoiled brat” to turn against „the people?” (Back then, it was all about „the people.” The National Socialist media — by the use of sophist rhetorics — had done a good job in convincing many Germans that being anti-Nazi would be roughly equivalent to being anti-German).

Based on her convictions, the Nazi press thus began to smear Sophie’s character. She was called „a spineless creature”, a „vain and selfish” tramp „without allegiance to her homeland”. She was soon arrested, sentenced to death for treason by the People’s Court of Justice and swiftly executed. These were tough times.

In reality, Sophie had a pleasant and selfless character. She was calm, had a mind of her own and didn’t like group pressure. At the very worst, she was a bit mislead — in her faith that Christian morale would command her to risk and eventually sacrifice her life. This is what makes her case so sympathetic.

From a legal point of view, nothing Sophie had done did amount exactly to an attempt to prepare high treason (defined as “amending the constitution by force”). But the Nazis — having been no great thinkers but true men of action — had long amended the German Penal Code in an unfortunate attempt to make it swiftly more compatible with their vision. According to s. 2 any behavior „deserving punishment according to the basic purpose of a penal law and according to the healthy sentiment of the people” could be declared criminal, even if someone had obeyed existing penal laws down to the last letter.

Four days after their arrest, on February 22, 1943, Sophie and Hans Scholl as well as Christoph Probst were sentenced to death by scaffold (guillotine) by the People’s Court of Justice. Image Courtesy of German Federal Archive (Bundesarchiv)

These measures, implemented as early as in 1935, had effectively eliminated all guarantees usually provided by a state under the rule of law. Requesting that someone must not defy „the healthy sentiment of the people” (and some „basic purpose”) does not refer to a specific act. Such a design is boundless and will eventually be subject to abuse.

In striking difference to the remaining penal norms in Austria, the Prohibition Act 1947 does not connect punishment to a specific act either, but to a quality of the culprit: to be a National Socialist.

It is the very nature of a National Socialist to „perform activities inspired by the National Socialist ideology.” It is the very nature of any human being to act in accordance with his convictions, values and ideas. In addition, the legal structure resembles a circular reference: „A crime commits ,whoever performs a criminal activity.’”

Such a design is much more than solely a tasteless remnant of a dark age when totalitarians had extended their grip over most of Europe. It expresses that Austrian judges are still entitled to judge the nature and convictions of a person — rather than forcing her to take responsibility for a specific act, as an enlightened penal law would command.

Punishment is linked to acts. Responsibility for criminal behaviour is created the very moments a culprit violates certain norms that are protecting important social structures: structures that must not be destabilized. Penalties targeting whole groups of ideas, principles and opinions, however, are not directed against a specific contemptible act. They are directed against the human being as a person. They are not suited to protect civil rights, human dignity, democratic values or the public order. Their aim is the destruction of the person holding the ideas, the eradication of the perpetrator considered a personified evil.

In our times, we can be more certain than ever: Nobody chooses his convictions. Nobody deems his own convictions wrong or evil. Nobody will alter his convictions unless his understanding is increased by sources he trusts. Sweeping oppression never increased anyone’s trust. On the contrary: civil rights consciousness and a livelier understanding of the truth are created partly through the clash with extreme and erroneous views. Constant collision with radical ideas keeps the democratic vision vivid and alive.

We also know: In the modern information age, ideas can no longer be contained. We can only continue to imprison people. But nobody is as evil, as the Prohibition Act suggests. The history behind every person fades when the Republic — supposed to be neutral and to protect people’s rights and dignity — officially classifies human beings as Nazi scum. The perpetrator becomes a mystified outcast to whose benefit no defence can be mounted anymore.

The Prohibition Act sets a very bad example. It strengthens people’s faith in authoritarian strategies. It suggests to both left- and right-wingers that its methods are an appropriate way to deal with ideas and persons undesired.

To an enlightened democracy, such a law is undignified. In its current form, it has lost nothing in the 21st century. There is a good reason why no other Western democracy knows penal norms even remotely similar.

But an amendment has to go beyond merely correcting the disproportional penalties. There ought to be substantial repairs:

Non-organized individuals need to regain their right to express themselves freely, to present and to discuss opinions without fear. People deserve to regain even their right to err. At least on the Internet and as long as specific statements do not reach the level of incitement to hatred or of instigation to violence (as defined by the Austrian Penal Code).

At last, the Constitutional Court deserves to be permitted to review the amended legislation: to verify whether its content can (still) be justified in a free and democratic society; to test whether it does not disturb rights and liberties dear and precious to us all. There is no reason to withhold any penal law from the scrutinizing eyes of the Republic’s most trusted jurists — unless one has a very bad conscience. ◻︎